McNally Amendment Lingers; Judicial Selection Bills Move

Consideration of the budget amendment sponsored by Senate Finance Committee Chair Randy McNally, R-Oak Ridge, that the TBA and others are vigorously opposing, was again deferred during public sessions today. The amendment (#271) strips all state funding -- $3.3 million -- from legal aid, transfers responsibility for administration of all appointed counsel and guardians ad litem to the state public defenders conference, and eliminates funds included in the Governor’s budget amendment to make up for chronic underfunding of the Davidson and Shelby county public defenders’ offices.

Meanwhile, the Senate Government Operations Committee moved bills extending the life of the Judicial Nominating Commission (SB 566/HB 796 and SB 215/HB 364) and the judicial Performance Evaluation commission (SB 567/HB 835 and SB 216/HB 695) to the floor. Both bodies would be extended until June 30, 2014, as amended. This would assure operation of the Tennessee Plan for merit selection through the 2014 elections.

Today's Opinions

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In this workers’ compensation appeal, the employee, a truck driver, alleged that he injured his right shoulder and low back when his tractor-trailer overturned. His employer stipulated that the shoulder injury was compensable, but denied that he had sustained a permanent back injury. Instead, the employer contended that the employee’s back symptoms were the result of a previous back injury, which had been the subject of a previous workers’ compensation claim and settlement. The trial court determined that the employee had suffered a new, compensable back injury and was permanently and totally disabled. The trial court apportioned 80% of the liability for the award to the employer and 20% to the Second Injury Fund. Employer has appealed, contending that the trial court erred by finding that a new, compensable back injury occurred. In the alternative, it argues that the trial court incorrectly apportioned the award. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

This appeal arises from a dispute over post-settlement medical care. The employee alleged that he developed asthma as a result of exposure to welding fumes in the workplace. The employee and employer settled the workers’ compensation claim. The trial court’s order approving the parties’ settlement provided that the employer would pay employee permanent partial disability benefits and provide future medical care “for the work related injury described” in the order. The trial court also designated Dr. Robert Younger III as the treating physician. Following the settlement, a dispute arose between the parties regarding payment for Dr. Younger’s treatment. The employer refused to pay for continuing treatment for the employee’s asthma because he was no longer exposed to welding fumes. The employee sought to require the employer to pay for the medical treatment Dr. Younger provided. After reviewing the medical proof submitted by the parties, the trial court ordered the employer to pay for Dr. Younger’s recommended treatment. The employer has appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. The employee alleged she sustained a gradual injury to her cervical spine as a result of her job. Her employer denied her condition was work-related and contended that her claim was barred by her failure to provide timely notice of her claim and the operation of the statute of limitations. The employer also argued subsequent employers were liable per the last injurious injury rule. The trial court found for the employee and awarded benefits. On the employer’s motion to alter or amend, the trial court held that the employee’s award was capped at one and one-half times the anatomical impairment rate pursuant to Tennessee Code Annotated section 50-6-241(d)(1). The employer appeals, contending the evidence preponderates against the trial court’s findings concerning compensability and the statute of limitations. The employee asserts the trial court erred by capping her disability award. We affirm the judgment of the trial court.

After the employee sustained a compensable injury to his low back which required surgery, he returned to work. The company for which he worked was sold to another entity after the date of injury but before the employee’s return to work. At trial, both parties agreed that the one and one-half times multiplier cap did not apply because the sale of the company was a “loss of employment” for the purposes of Tennessee Code Annotated section 50-6- 241(d). At trial, the employee was awarded 78% permanent partial disability, the maximum permitted under law, based on an anatomical rating of 13%. The employer has appealed and is contending that the award is excessive. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Michael L. Flynn, District Attorney General; and Matthew L. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Joshua Todd Crittenden, was convicted by a Blount County Circuit Court jury of two counts of robbery, Class C felonies. See T.C.A. § 39-13-401 (2010). He was sentenced as a Range II, multiple offender to consecutive ten-year terms of confinement for an effective twenty-year sentence. On appeal, he contends that the trial court erred by ordering consecutive sentencing. We affirm the judgments of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Associate Deputy Attorney General; William H. Cox, III, District Attorney General; and Cameron Williams and Lance Pope, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: PAGE

A Hamilton County jury convicted appellant, Quinzell Grasty, of felony murder, second degree murder, attempted especially aggravated robbery, and aggravated burglary. The trial court merged the second degree murder conviction into the felony murder conviction and sentenced appellant to serve a life sentence for felony murder. The trial court also sentenced appellant to serve eight years for attempted especially aggravated robbery and three years for aggravated burglary, to be served concurrently in the Tennessee Department of Correction. On appeal, appellant argues that the trial court erred by denying his motion to suppress his statements to police, by admitting photographs of the victim and a recording of the 9-1-1 call, by failing to redact references to appellant’s gang affiliation from his statement, and by admitting demonstrative evidence in the form of a shotgun purported to be similar to the weapon used in the murder. Discerning no error, we affirm the judgments of the trial court.

In this case, Plaintiff filed a petition for criminal contempt against Counsel, alleging that Counsel allowed Defendant to portray herself as unrepresented when Counsel assisted her with her testimony and pleadings. The court dismissed the petition, finding that it did not have subject matter jurisdiction to consider the motion when Plaintiff had alleged an ethical violation that did not rise to the level of criminal contempt. The court also denied a subsequent motion to alter or amend its judgment and a motion for recusal. Plaintiff appeals. We affirm the decision of the trial court.

State of Tennessee filed petition under the Uniform Interstate Family Support Act to enforce a child support order entered in a California divorce proceeding against the father of the children. The trial court dismissed the petition for lack of jurisdiction. We reverse the decision of the trial court and remand the case for further proceedings.

Robert E. Cooper, Jr., Attorney General and Reporter, and Bruce M. Butler, Assistant Attorney General, for the appellee, Tennessee Department of Transportation.

Judge: BENNETT

An applicant for billboard permits sought judicial review of the decision of the Tennessee Department of Transportation to deny the applications. Finding no error, we affirm the trial court’s decision upholding the Department’s denial.

Robert E. Cooper, Jr., Attorney General and Reporter, and Bruce M. Butler, Assistant Attorney General, for the appellee, Tennessee Department of Transportation.

Judge: BENNETT

An applicant for billboard permits sought judicial review of the decision of the Tennessee Department of Transportation to deny the applications. We have concluded, as did the trial court, that the grandfathering provisions of Tenn. Code Ann. § 13-7-208 did not apply in this case. Finding no error, we affirm the trial court’s decision upholding the Department’s denial of the billboard permit applications.

TN Attorney General Opinions

Today's News

Legal News

Baumgartner Gets 6 Months in Jail

Former Knox County Criminal Court Judge Richard Baumgartner has been sentenced to six months in jail for lying to cover up his pill-supplying mistress’ drug dealing, according to Knoxnews. U.S. District Judge Ronnie Greer refused Baumgartner’s attorneys' plea for probation, saying that not ordering Baumgartner to prison would undermine the justice system. Defense attorney Donald Bosch said he will file a motion to stay the sentence pending appeal.

Rivera Named Acting Federal Prosecutor

David Rivera has been named acting U.S. attorney for the Middle District of Tennessee, replacing Jerry Martin who left office to create a Nashville office for Robbins Geller Rudman & Dowd. Rivera is a veteran federal prosecutor who worked in federal prosecutors’ offices in Puerto Rico, Florida and New York, and has been recognized for work on prosecutions of international drug trafficking organizations as well as his work on public corruption and economic fraud cases. Knoxnews has the story.

Nashville Attorneys Appointed to Key Roles in Meningitis Case

Mark Chalos of Leiff Cabraser Heinmann & Bernstein has been appointed federal-state-liaison counsel for the large product liability lawsuit against the New England Compounding Pharmacy. He will coordinate communication with attorneys handling cases against the company, which filed for bankruptcy late last year after it shipped to hospitals and other care providers tainted materials that led to an outbreak of fungal meningitis. The Nashville Post reports that Chalos has also been named to a seven-members plaintiff’s steering committee, joining Nashville lawyer Gerard Stranche, a member at Branstetter Stranch & Jennings. That committee, which will coordinate the pretrial discovery on behalf of the plaintiffs, also includes attorneys from Boston, Atlanta, Michigan and Virginia.

Miller & Martin Appoints New Leaders

Miller and Martin attorney James T. Williams has been appointed to serve as chair of the firm’s litigation department, the Chattanoogan reports. Alison B. Martin will take the role of vice-chair. “We are excited to have James and Alison lead our Litigation team as the department continues to grow. Their depth of expertise and dedication to the firm makes them invaluable to the future success of the department,“ said Jim Haley, chairman of the firm.

IRS, DOJ Crack Down on Tax Violators

The IRS and Justice Department tax lawyers are pressing efforts to combat tax fraud, identity theft and offshore tax evasion, WCYB reports. With the April 15 tax filing deadline fast approaching, the DOJ says it is aggressively pursuing tax violators, despite forced spending cuts. Kathryn Keneally, assistant attorney general for the Tax Division, said government prosecutors achieved a 95 percent success rate in all civil and criminal cases they litigated in the past year.

Public Defenders Warn: Nothing Left to Cut

Federal public defender offices are feeling the effects of federal spending cuts, National Public Radio reports, with some seeing layoffs or trial delays due to budget restrictions. Last month, the Justice Department celebrated the 50th Anniversary of Gideon v. Wainwright, in which the Supreme Court ruling gave poor people facing criminal charges the right to a lawyer even if they couldn’t afford one. According to Ohio public defender Steven Nolder, that obligation does not go away even if spending cuts limit access to public defenders. "These are not luxury services that we're providing," Nolder says. "These are constitutionally mandated services, and because they're mandated, someone has to do it."

Upcoming

CASA Hosts Red Shoe Party

The 14th Annual Red Shoe Party is a cocktail dinner event benefiting Court Appointed Special Advocates (CASA) chapter located in Nashville. The event will be held Saturday at the Pinnacle at Symphony Place at 7 p.m. and will feature a dance and auction. Jane Andrews, CASA executive director in Nashville, said the event is “a fun and exciting way to communicate the mission of CASA to a broad spectrum of the Nashville community who may not be aware that child abuse is a significant issue in our own city. It is an opportunity for people to make a difference in the lives of these child victims and give them hope for a safe, permanent home." Visit www.casa-nashville.org for tickets.

General Assembly News

Income Tax Ban to go Before Voters

A proposed constitutional amendment to ban a state income tax in Tennessee passed the House on Monday and will go before the voters next year, the Memphis Daily News Reports. The chamber voted 88-8 in favor of the measure, sponsored by Republican Rep. Glen Casada of Franklin. The amendment would also ban payroll taxes by the state or local governments.

Senate OKs Bill Blocking Access to Gun Permits

The state Senate approved a bill today closing public and media access to Tennessee’s handgun-carry permit records in most cases, making confidential the identities of nearly 400,000 citizens licensed to go armed in public. The Senate added an amendment providing limited circumstances when the public may ask if a specific individual who has some brush with the law has a permit, which sends the bill back to the House for concurrence with the amendment only. The Commercial Appeal has the story.

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.